Fair Work Act 2009
s.394—Unfair dismissal

Jeb Hendricks
v
Catholic Education Western Australia (CEWA)
(U2022/832)

Application for an unfair dismissal remedy

[1] On 17 January 2022, Mr Jeb Hendricks (the applicant) made an application under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The respondent is Catholic Education Western Australia (CEWA or the respondent).

Background

[2] The applicant was first employed by the respondent in 2017 as a Mathematics Teacher at the Irene McCormick Catholic College (the College).

[3] The applicant subsequently applied for the position of Head of Mathematics at the College and was successful and so appointed to this role in September 2018.

[4] In his application. the applicant argues that whilst he remains employed by the respondent, he was recently demoted and this involved a significant reduction in his remuneration and duties which amounts to him being dismissed within the meaning of s.386 of the Act.

[5] The respondent in its Form F3 Employer response raised the jurisdictional objection to the application that the applicant remained a teacher at the college and was not dismissed, rather he was merely demoted and no longer had the role of Head of Mathematics.

[6] The matter was the subject of a staff conciliation conference however it was not resolved so allocated to me for hearing and determination.

[7] The parties were notified of a hearing date with directions for the filing of materials.

[8] On 20 May 2022, the respondent’s legal representatives notified the Commission that after conferring with counsel, they had been instructed to withdraw the jurisdictional objection.

[9] Consequently, amended directions were issued to the parties and the matter proceeded to be heard as listed to consider the merits of the application.

[10] At the hearing of this matter, the applicant gave evidence on his own behalf and evidence was given by Mr Tony Summers, a former colleague of the applicant. For the respondent, evidence was given by Ms Debbie White, the Assistant Deputy Principal Year 10, Mr Andrew Billingsley, the Deputy Principal, and Mr Robert Marshall, the immediate past Principal of the College.

The evidence and factual findings

[11] The applicant was first employed by the respondent in 2017 as a Mathematics Teacher at the College.

[12] His employment was covered by The Roman Catholic Archbishop of Perth Teachers Enterprise Bargaining Agreement 2015 (the Agreement), registered by the Western Australian Industrial Relations Commission. 1

[13] The applicant subsequently applied for the position of Head of Mathematics at the College and was successful and so appointed to this role in September 2018.

[14] The applicant and Mr Marshall in September 2018 signed a document titled ‘Contract Agreement Head of Mathematics’, for a ‘First Term Period of Appointment’ being 1 January 2019 to 31 December 2020. Consistent with this appointment being to a promotional position as defined in Clause 5 of the Agreement, the contract details the applicable promotional position allowance payable to the applicant.

[15] Mr Marshall’s evidence is that a contract agreement for a head of a learning area can be for up to 8 years in total. The first period is two years, the second could be up to 3 years and the next one could also be up to 3 years.

[16] Consistent with this, in this case the contract states:

“The first term of the appointment is for two years. Continuation will be subject to review before the end of December 2020.”

[17] Relevantly, Part 4: Conditions of the Agreement includes clause 22 Appraisals. This clause details requirements for two types of appraisals.

“(1) Formative Appraisal

Formative Appraisal has as its purpose the enhancement of teacher skills:…..” and

“(2) Summative Appraisal

The process of appraisal to be used when the reasons relate to the teacher’s conduct or performance and where the result may be the termination of employment”

[18] The Agreement is silent on a review of the continuation of an appointment to a promotional position such as the Head of Mathematics as is included in the Contract Agreement Head of Mathematics.

[19] It is not apparent that a review of the continuation of appointment to a promotional position is covered at all by clause 22 Appraisals of the Agreement.

[20] The Contract Agreement Head of Mathematics also states the applicant agrees to comply with all CEWA policies and school policies.

[21] The statements of Mr Marshall, Mr Billingsley and Ms White provide details of a number of concerns about the applicant during the first 18 months of this first term period of appointment.

2020 Review

[22] In June 2020, Mr Marshall reviewed the applicant’s performance as the Head of Mathematics as is provided for in the Contract Agreement Head of Mathematics. He met with the applicant and asked him if he wanted Mr Marshall to conduct the review or have someone external do this. The applicant opted for Mr Marshall to conduct the review.

[23] This review (the 2020 review) involved a panel of four staff reviewers providing confidential comments on the applicant in answer to a series of questions.

[24] Having received the reviewers’ input, Mr Marshall reflected on their feedback. His decision was that an extension of contract as Head of Mathematics would be provided to the applicant. However, that would be for only one year. The context being that an extension in this situation could be for up to 3 years.

[25] Consequently, he met with the applicant and provided him with a letter dated 16 September 2020 2 which listed dot points of identified strengths and identified areas for future focus. He also provided him with a new Contract Agreement Head of Mathematics.

[26] Relevantly the letter reads:

“The review has identified strengths in your role and your commitment as a staff member of the College. These include that you:

•  Are a member of the St Andrew’s Parish Council and an Extraordinary Minister of the Eucharist. You hold your faith central to your life and everything you do is guided by your faith.

•  You articulate a genuine love of Christ and Church when leading staff prayer.

•  Treat others with respect.

•  Contribute to extra-curricular activities including coaching the Senior Girls Soccer, Senior Boys Basketball and participating in the Brighton Reading Program.

•  Encourage staff in your Learning Area to seek out and use new technology.

•  Are keen to improve students’ numeracy skills and encourage active discussion within the Learning Area in that regard.

•  Encourage staff to expand, develop, collaborate and share their teaching strategies and content knowledge, to improve teaching and learning strategies. You are open to staff having pre-service teachers in the Learning Area.

•  Contact parents of students in regard to their behaviour and achievement.

•  Discuss any issues staff are experiencing and provide support for these. You encourage discussion about students’ movement in courses.

•  Are endeavouring to adapt and integrate your leadership skills into an educational institution.”

[27] The review also identified areas for future focus such as:

“•  Dedicating more time towards personal development in Mathematics and building on your classroom experience. Gaining experience in teaching students across the range of junior and senior school courses which will give you better ability to lead the Learning Area.

•  Developing skills in managing a diverse group of staff and being able to relate better to students.

•  Communicating effectively and not speaking without thinking. Realising that your viewpoint and extreme opinions can often make conversations become uncomfortable within the office.

•  Gaining educational leadership skills and experience including the ability to listen, challenge and act with justice, integrity and care.

•  Improving your understanding of WACE and SCSA requirements and the WA Curriculum including grading and standards.

•  Looking at ways to raise the Academic standards of students from Year 7.

•  Acknowledging that there is not one best way to teach mathematical concepts and that not all students learn in the same way. Organising and communicating content to students with wide-ranging interests, abilities and personalities.

•  Undertaking professional development of teaching practice and working with students with special needs.

•  Creating working relationships with students and gaining the balance of clear boundaries whilst students still enjoy learning.

•  Making opportunities to observe teachers in the classroom.

•  Being more open and flexible to being mentored, undertaking observation and listening to feedback.

•  Continuing to use OneNote and Mathspace resources.”

[28] Notably, the letter explained that in accordance with the contract agreement, a second term as Head of Mathematics was subject to his review, and that due to identified areas for development, he would be offered a second term of one year ending on 31 December 2021.

[29] The letter also stated that a third term as Head of Mathematics would be subject to a review in Term 3 of 2021.

[30] Mr Marshall’s evidence was that he was surprised at how quickly the applicant read the letter and signed the new contract which he says occurred within 60 seconds. The Second Term Period of Appointment Contract Agreement Head of Mathematics was signed by both the applicant and Mr Marshall on 16 September 2020.

[31] With respect to the 2020 review Mr Billingsley’s evidence was that his feedback regarding the applicant for the purposes of that review was as follows:

“Classroom management can be an issue for Jeb and his ability to connect with younger students who may be less able. Jeb needs to work on how he tries to create working relationships with these students and gain the balance of clear boundaries whilst students still enjoy learning. A focus on positive achievement however small may help in this.’

‘Jeb has the best interests of the department at heart but needs to develop his skills in managing a diverse group of staff. Engaging staff and their expertise and experience will help him to do this. Also slowly trying to change one thing at a time rather than all at once will help Jeb in his persuits (sic) to raise the profile of the department. His desire to raise Academic standards is clear but he needs to look at how this can be achieved starting from Year 7.”

“Jeb needs to develop his classroom practice and understanding of the students at the College. He needs to develop ways to involve students so they ‘buy in’ to his desires for their academic improvement.”

“It is important that Jeb realises that if his ideas are not acted upon this is not a slight on him or the ideas. If he can do this it will give him the skills to develop the ideas to enagae (sic) those involved and also show how they will positively impact on all members of the College community.”

“Jeb has an awful lot of experience out of education. Jeb needs to work on building relationships within the College to gain support that will help him to develop as a teacher and leader.”

[32] Mr Billingsley’s evidence was that Mr Marshall discussed whether the applicant should continue in his role and he was considering not offering him another contract. Mr Billingsley told Mr Marshall that he felt that they should at least give him a year with some support to turn around the negative aspects of the review.

[33] His evidence was that Mr Marshall sent him a draft of the letter that was ultimately sent to the applicant detailing the outcomes of the 2020 review and asked him to review this before it was provided to the applicant. 3

[34] Mr Marshall’s evidence was that after the new Contract Agreement had been signed on 16 September 2020, he and the applicant had follow-up conversations with at least two meetings to discuss the areas where the applicant needed to improve. His evidence was he thought the applicant was making progress and the applicant had said he would consider working with the Head of English for mentoring. However, later the applicant told Mr Marshall he had decided not to do this.

[35] The evidence is that the same day the applicant and Mr Marshall had signed the Contract Agreement, 16 September 2020, the applicant emailed Dr Sayce at CEWA requesting a resolution of a dispute between himself and Mr Marshall. The emailed letter raising the dispute states that Mr Marshall had previously declined to provide him with copies of all documentation relied upon by the employer in reviewing his performance. The applicant argues in the letter that the review was a formative appraisal and so under the Agreement clause 22 Appraisal, the employer is obliged to provide copies of all documentation relied upon. Apparently, Mr Marshall had previously declined to provide the reviewers’ information to the applicant citing confidentiality. 4

[36] On 21 October 2020, Dr Sayce replied to the applicant stating amongst other things that the review was not a formative appraisal under clause 22 of the Agreement, rather it was a “performance review linked to the contract renewal process of a middle leadership position, specifically to determine whether you would continue in the Head of Mathematics role.”

[37] A week later, the applicant wrote to Dr Sayce continuing to agitate his complaint about the review and disputing CEWA’s response. 5

[38] Mr Billingsley’s evidence was that on 20 and 22 November 2020, the applicant sent emails to the College’s Board Chairperson which had been copied to the Academic Council, the College executive and the heads of learning areas. 6

[39] Mr Billingsley’s evidence was that after the applicant sent the emails, he spoke with the applicant concerned that the emails complained about a failing of leadership at the College. His evidence was the applicant said he was not talking about him, Mr Billingsley, but rather about Mr Marshall. Mr Billingsley told the applicant that he knew that but that the Assistant Deputy Principals were taking his communications personally. His evidence was the applicant said that he was driven by his religious convictions and he said that Mr Marshall was trying to silence him.

[40] Mr Billingsley’s evidence was that he told the applicant that when he is sending these emails, he is “bracketing people”, meaning he is grouping all the leadership together as being part of the alleged problem. 7

[41] In reply, he says the applicant referred to his religious convictions and quoted the College’s Code of Conduct (the code). He says the conversation went around in circles and he told him that if he had issues with Mr Marshall, he should not send these types of emails but address them directly with Mr Marshall.

[42] Relevantly, the applicant’s email dated 22 November 2020 in reply to the College’s Board Chairperson, Mr Gavan Prunster, and copied to numerous persons, explains that he has serious misgivings about the present direction of the IMCC, then in other parts of his email states that he can only conclude that some deliberation with others occurred that tried to justify no action by the Advisory Council on his previous letter and that if his conclusion is correct he would suggest that those with whom the Board Chairperson may have consulted might have a personal conflict of interest due to the shift in power he has alluded to.

[43] Ms White also was a recipient of these emails. In her view, the emails expressed dissent about how the executive leadership was running the school. Her view was the emails also attacked Mr Marshall.

[44] Her evidence was that at an off-site Academic Council meeting, she heard people raise concerns about the applicant’s conduct in sending these particular emails. She says the applicant’s emails made the Academic Council meeting very unpleasant and seemed to fuel further dissent with middle management, being the heads of learning areas. At the meeting, one education training coordinator verbally attacked leadership and the executive in front of the group and stormed out of the meeting.

[45] Ms White’s evidence was that after this, the applicant admitted to the whole group that his emails had contributed to this incident and he said he took responsibility for the air of dissent at the meeting, including in the days leading up to the meeting.

[46] Mr Marshall’s evidence was that in February 2021, the applicant made a complaint to CEWA about two matters concerning teaching, learning and assessment at the college namely assessment practices in mathematics for years 7 to 10 students and the timetabling of year 9 extension classes. CEWA responded to the effect that these were operational matters best resolved at the school level and are the responsibility of the Principal. 8

NAPLAN test re-scheduling

[47] The evidence of Ms White is that she is a National Assessment Program – Literacy and Numeracy (NAPLAN) coordinator at the College along with Deputy Principal, Mr Billingsley.

[48] Her evidence is that the College had to complete NAPLAN testing between Monday 10 May 2021 to Friday 14 May 2021. The following week was allocated for catch up tests for students who could not sit the test in the first week. They knew some families were away the following week which meant it was more suitable to conduct the testing in the first week.

[49] Her evidence was that NAPLAN tests had to be conducted in a particular order and it was not uncommon for two NAPLAN tests to be conducted on the same day.

[50] She says that on Thursday, 13 May 2021, she was waiting for the NAPLAN language conventions test to begin. However, Mr Billingsley informed her that all tests had to stop due to a technical difficulty with NAPLAN.

[51] After one and a half hours of speaking with NAPLAN and Mr Billingsley, she explained to NAPLAN they no longer had time to conduct that NAPLAN test that day.

[52] She spoke to Mr Billingsley about their options and she says they agreed that because they had already notified parents that the College would complete all NAPLAN tests by that Friday they should schedule the numeracy test for the following day after the language conventions test.

[53] Her evidence was that Mr Billingsley and herself did not express any concerns to each other about two tests being held on the same day

[54] Consequently, she emailed staff that afternoon informing them of that decision and providing the new schedule for the tests.

[55] The schedule shows that students would start the first test at 8:30 AM and finish by 9:30 AM. Her evidence was the next test started at 11:00 AM and so students had about a one-and-a-half-hour break. They were given the option to sit and relax or go to recess.

[56] Ms White explained that she did not realise that the applicant had emailed her twice that night about the testing because she does not take her laptop home at nights.

[57] The first email from the applicant at 6:57 PM was addressed only to Ms White in which he stated he did not see the requirement for sitting two NAPLAN tests on the same day and as he understood it the window went through to 21 May. He asked why the two assessments must be set the following day.

[58] The applicant’s second email at 9:52 PM was addressed to Ms White, Mr Billingsley and copied to Mr Marshall and a Mr Aldous of CEWA. In this email, he noted his position as Head of Mathematics and stated he did not concur with the schedule for the next day. He expressed his opinion that asking students to take the numeracy test a little over an hour after convening the language conventions test on a Friday morning is not appropriate. He stated expecting students to perform at an optimal level so soon after completing a demanding assessment was unrealistic and unwarranted. He stated that they must provide students the opportunity to maximise their outcomes for their benefit and the benefit of the school’s reputation. He offered to collaborate to reschedule the numeracy NAPLAN test for the following week. 9

[59] Ms White says that the next morning, about 7:30 AM on Friday, 14 May 2021, she was working on preparation for the NAPLAN testing when the applicant walked into her office asking about the testing. She says she told him to stop, that she was stressed and was preparing for the testing that morning and she gave him Mr Marshall’s number to ring if he had any issues. The applicant then left her office.

[60] It is not disputed that the applicant later emailed parents at 9:19 AM that morning, using the teaching and learning platform (SEQTA) complaining about the College’s decision to reschedule two NAPLAN tests on one day. That email 10 read as follows:

“Good morning,

Late yesterday, I became aware of changes to the NAPLAN schedule for Year 7 and 9 students. Instead of one NAPLAN test, two NAPLAN tests will be set for today. I tried to communicate my concerns to the appropriate individuals without success.

As a consequence I am obligated as the Head of Mathematics at IMCC and by the School’s Code of Conduct to inform you of situations that may impact your child’s outcomes. Setting the Numeracy OLNA for Periods 3 & 4 will likely negatively impact the overall Year 7 & 9 outcomes for two primary reasons:

1. “Cognitive fatigue influences students’ performance on standardized tests.” This statement comes from an article (link pasted below) that details how standardised test results decline as the day progresses.

2. The congnitive (sic) fatigue is increased by the fact all students will have already taken a stressful assessment fewer than two hours earlier.

I can only conclude that students, as a cohort, should be expected to perform less well on this important individual assessment simply because of timing. The importance is especially true for Year 9 students as they can complete a graduation requirement by achieving Band 8.

I have done what I can to look out for the best interests of your children. If you have concerns I recommend using the CEWA’s “Dispute and Complaints Resolution” process with the first step in this case of contacting the School’s Principal.

Kind regards, Mr Jeb Hendricks

Head of Mathematic, Irene McCormack Catholic College

https://www.forbes.com/s -its-best-to-take-tests-early-in-the-day/?sh=3ca3901b6bd6”

(sic)

[61] Ms White’s evidence was that this email to parents is against the usual practice of how senior staff members are expected to conduct themselves. Usually, an Assistant Deputy Principal or the Deputy Principal may email parents in bulk but usually not a Head of Department and certainly not in the manner that the applicant wrote.

[62] Under cross-examination Ms White confirmed that the decision to have the two NAPLAN tests conducted on the Friday morning, 14 May 2021, was made by herself and Mr Billingsley after conferral with Mr Marshall. 11

[63] She said she also schedules exams and OLNA assessments and that they do schedule two exams for the same day, but for OLNA assessments that is unlikely but could happen. 12

[64] Ms White explained that for NAPLAN, the tests should occur in one week and the second week is primarily for catch ups, it is not for scheduling time. Her evidence was that if you have four NAPLAN tests and you have four days, it makes sense to have one per day.

[65] She explained the NAPLAN handbook states the second week should be for catch up. 13

[66] Under cross-examination, she was asked about the email the applicant sent to parents complaining about the College’s decision on scheduling NAPLAN tests and whether communicating an honest concern was complaining. Her answer was that she would definitely not recommend it and she would consider it to be unprofessional practice. She said it should have been discussed with the leadership and it is not something she has ever seen occur before. 14

[67] When asked if a teacher has an honest concern and feels that parents ought to know about this because they are supposed to consider the students’ well-being as the top priority, her answer was that she could not professionally see how his email would have catered to their well-being. 15

[68] Ms White agreed that the student’s best interests should be everyone’s number one priority.

[69] Her evidence was that she did not read the article regarding cognitive fatigue the applicant had attached to the email he sent to the parents. 16

[70] The applicant put to Ms White that as the Head of Mathematics he was supposed to communicate honestly with parents about mathematics and numeracy. However, her response was she still thought his email to parents on 14 May 2021 was inappropriate. 17

[71] Mr Billingsley’s evidence in chief was that on 13 May 2021 at 9:51 PM, the applicant had sent an email to him, Mr Marshall, Ms White and CEWA’s Mr Aldous objecting to the scheduling of NAPLAN testing. He tried to call Mr Marshall, who was at a principal’s retreat, regarding the plan for the next day to do the two NAPLAN tests in one day but could not reach him that night.

[72] He says he thought it was fine to do two different types of NAPLAN tests, first with comprehension and literacy and then with numeracy on the same day.

[73] He eventually discussed the issue with Mr Marshall who also supported the decision to have both tests on the same day. He conveyed that decision to Ms White who also supported it.

[74] The next morning, he was at home with a sick child but he emailed the applicant at 7:26 AM and asked the applicant to call him. They then spoke for about 10 or 15 minutes. In the call, the applicant wanted to know why he had not responded to his email and said that Mr Billingsley was not taking his concerns seriously.

[75] The applicant said that they were putting maths at an undue disadvantage, and he said having two NAPLAN tests in a day was unethical.

[76] Mr Billingsley explained that there were many occasions where more than one NAPLAN test had been conducted on one day. The applicant said that he did not believe him.

[77] Mr Billingsley told him that he was disappointed he would say that. He told the applicant to go to the website for Australian Curriculum, Assessment and Reporting Authority (ACARA), the organisation that arranges NAPLAN testing.

[78] His evidence was that NAPLAN has strict timeframes to complete the test. NAPLAN online has a two-week window, but for written tests there are only four days within which students must undertake the test.

[79] He says he told the applicant that Ms White had told him that she contacted CEWA’s NAPLAN officer about the issue and also ACARA. Both of these contacts said it was fine to have two NAPLAN tests on one day.

[80] The applicant still said that he did not think ‘it was on’. He said how was he to know that Mr Billingsley had this conversation with Mr Marshall. Mr Billingsley said to the applicant it was disappointing that he questioned whether he had the conversation with Mr Marshall.

[81] Mr Billingsley’s evidence was that this was the second time the applicant had asked if he was being truthful.

[82] He does not recall the date of the first occasion in 2021 where the applicant questioned his authority and credibility, but it was an incident where the applicant was in Mr Billingsley’s office and he did not agree with something he had said. He explained to the applicant that within a school, one had to follow the chain of command.

[83] The applicant had then quoted the code and said that his only master was God. 18

[84] During the phone call on 14 May 2021, he said that applicant was more than welcome to ring Mr Marshall for clarification. The applicant said the decision was unjust and he would contact all parents about it.

[85] Mr Billingsley’s evidence in chief was that he told the applicant not to do that. He remembers saying this as his son was in his highchair and was starting to get annoyed as the TV had stopped. Mr Billingsley said to the applicant that he had to put the TV on for his son and he had said:

“Whatever you do, don’t send an email to the parents.”

[86] The reason for this is because any emails like that to parents should only come from Mr Marshall or himself.

[87] Mr Billingsley said that the applicant replied that he was fed up with all of these processes and he went on a rant about Mr Marshall, he said he was a poor Principal who made bad decisions and did not listen. He said there was no point speaking to Mr Marshall and that Mr Marshall was abusing his power. He said that Mr Marshall should not be making the decisions that he made

[88] Mr Billingsley says he replied, “I strongly advise you not to send that email” and “I don’t want you to send that email.” He said “you need to speak to Rob about sending anything.”

[89] Mr Billingsley’s evidence was that the problem with the applicant sending this email was the risk to the College’s reputation. Saying that they would put students at risk in relation to standardised national testing undermined the College’s leadership. An email like this says that the College is not in a position to put students’ best interests first to achieve graduation.

[90] His evidence was that the only people who should be sending emails to a collective group of the College as a whole should be the Principal, Deputy Principal or Assistant Deputy Principals. If it was subject-specific that would be fine with approval of line managers, himself or the Principal. The College cannot have middle management just sending such messages especially in the way the applicant had written it.

[91] Under cross-examination, Mr Billingsley agreed that year 9 students sitting NAPLAN tests are important because if they achieve a band 8 score or above, they have then ticked one of the boxes for achieving a Western Australian Certificate of Education (WACE). 19

[92] His evidence was that at the time, he was aware the NAPLAN testing window was open for another week but recalls there were students who were going to be absent that following week which would have meant those students could not do the NAPLAN test at all. If this occurred, those students would be required to do an online literacy and numeracy assessment (OLNA ) in year 10. 20

[93] His evidence was that if a year 9 student sits a NAPLAN test but does not achieve a band 8 or higher score, they still have other opportunities, specifically being twice in term 1 and term 3 in both year 11 and year 12, to undertake an OLNA and if they get a level 3 in this then that is the equivalent to a band 8 in in NAPLAN. They also have two more opportunities after graduation. 21

[94] His evidence was that in 2021 there were approximately 156 year 9 students.

[95] Under cross-examination, his evidence was that they had sometimes done two OLNAs in one morning and had done two exams in one morning depending on the time.

[96] His evidence was that he does not think that it is stressful for 12 and 14-year-old students to do two NAPLAN tests in a day. 22

[97] Under cross-examination, Mr Billingsley’s evidence was that if the Principal gave him a direction that was contrary to the interests of the college community, he is still obligated to follow that direction, unless it was to the detriment of the safety of himself or others. But if he was unhappy with that direction, he would take that further. He may then ask the Principal to put the direction in writing. 23

[98] Regarding the 2021 review, Mr Billingley’s evidence in cross-examination was that he thought the executive team would have come across more instances where they felt the applicant had not followed instructions than would other staff who also reviewed his performance. 24

[99] He explained that if there is not faith that a middle leader in the College will follow directions, that is a significant concern for the executive team. 25

[100] Under cross-examination, his evidence was that there were significant directions the applicant had not followed including the NAPLAN issue. 26

[101] The evidence in chief of Mr Marshall regarding NAPLAN assessments is that they have to be done in a particular order. Due to an issue with IT systems, one of the NAPLAN assessments had to be pushed to a day where other assessments were to be done on the same day.

[102] His evidence was that on 13 and 14 March 2021, he was in Bunbury for a principals’ meeting.

[103] Mr Billingsley called him and told him that the applicant had threatened to send an email to parents about the NAPLAN scheduling.

[104] His evidence was that he was about to leave his motel for meetings when the applicant rang complaining about the issue. He told the applicant that they would go ahead with the decision to schedule the tests on the same day. The applicant replied:

“Well I’m about to send an email to parents about it”.

[105] The evidence of Mr Marshall is that the applicant then hung up before he had a chance to respond.

[106] Mr Marshall’s evidence was that only the school executive was to determine whether it was appropriate to email parents. Even though the applicant had a different opinion on the scheduling of the NAPLA numeracy test, it was out of place for him to email the parents.

[107] Mr Marshall then decided not to attend the principals’ meeting because Mr Billingsley was at home caring for his child and Ms White was seemingly upset with what the applicant was doing and he drove back to Perth on the Friday.

[108] The trip from Bunbury to Perth is approximately a two hours’ drive.

[109] When Mr Marshall arrived at school, he spent some time monitoring the classrooms where the NAPLAN numeracy tests were being conducted. From his observations, the maths test went smoothly and no students seemed perturbed.

[110] Under cross-examination, Mr Marshall did not recall receiving an email in the evening from the applicant on 13 May 2021. His evidence was he doubted that he would have opened such an email as he was out at a dinner that evening which concluded about 9:30 PM.

[111] Mr Marshall was not cross-examined regarding the controversy surrounding the scheduling of the NAPLAN numeracy test. He was not challenged on the phone conversation he had with the applicant on the morning of Friday, 14 May 2021.

[112] The applicant’s evidence in chief did not deal with the NAPLAN test rescheduling.

[113] The applicant agreed that on Thursday, 13 May 2021 at 7:19 PM, in his email to Ms White and Mr Billingsley regarding NAPLAN tests, he states:

“I need to know that driving requirement for this planned for tomorrow. If this is truly necessary I feel it my responsibility as the Head of Maths to communicate my opinion on the unjust nature of the schedule to the parents of all year seven and nine students.”

[114] In cross-examination, the applicant volunteered that whilst he did not say in this email he was going to email the parents, from his perspective there is only one way to communicate to about 300 parents. 27

[115] He agrees that less than an hour later at 8:14 PM, he sent an email to Ms Perrigo at CEWA and one other person referring to rescheduling of the NAPLAN tests for the following day and said:

“Unfortunately, looking out for the public interests and the best interests of our students I feel obligated to email parents tonight to ask them to contact the school in the morning to protest the school’s plan for tomorrow.” 28

[116] He agrees that in his next email to Ms White and Mr Billingsley at 9:52 PM, he did not say anything about emailing parents. 29

[117] The applicant did not agree under cross-examination that he mentioned to Mr Billingsley the next morning, 14 May 2021, on the phone that he was going to email parents. 30

[118] However, the applicant conceded it is possible that during the phone conversation the next morning with Mr Marshall he told Mr Marshall he was about to email parents and then hung up. 31

[119] His evidence was that even if Mr Billingsley did in their phone conversation on the morning of 14 May 2021 tell him not to send an email to parents, that would not have been a lawful and reasonable direction that he would have had to comply with. 32

[120] Similarly, under cross-examination his evidence was that if Mr Marshall on the telephone that morning had been given the opportunity to tell him not to send an email to parents that would not have mattered because it was not a lawful and reasonable instruction. 33

[121] His evidence is this was the case because he is bound by the code.

[122] Reviewing the evidence of the witnesses regarding the phone conversations between the applicant and firstly Mr Billingsley and then Mr Marshall on the morning of 14 May 2021, I firstly note that Mr Billingsley’s memory of the conversation with the applicant on the phone was not challenged in cross-examination and Mr Marshall was not cross-examined regarding the scheduling of the NAPLAN numeracy test at all. I also note the applicant conceded in the evening prior he had sent emails to others outside the school foreshadowing he would email parents regarding his concerns. 34 I also note the applicant did not agree under cross-examination that he mentioned to Mr Billingsley that morning on the phone that he was going to email parents.35 I further note the applicant conceded it is possible he told Mr Marshall he was about to email parents and then hung up.36

[123] Considering all this evidence above, I accept the versions of Mr Billingsley and Mr Marshall regarding their phone conversations with the applicant on the morning of 14 May 2021.

[124] Consequently, I find that on Friday morning, 14 May 2021, in phone conversation, Mr Billingsley expressly told the applicant not to email parents regarding his concerns about the scheduling of the numeracy NAPLAN test and separately I find the applicant told Mr Marshall that he was going to email parents regarding his concerns on this issue but then ended the phone call before Mr Marshall could respond.

[125] In the wake of the applicant sending the email to parents, the respondent conducted an investigation into his actions.

[126] On 3 June 2021 Assistant Deputy Principal Mr Matthew Byrne wrote to the applicant putting to two allegations to him. Firstly, that by sending the email he was “[u]ndermining the leadership team through your communication to parents on 14 May 2021 and failing to follow a lawful instruction”. The second was that “[u]sing an article not associated with the curriculum to support your view that the College is not acting in the best interests of students”.

[127] The applicant was invited to respond which he did in writing.

[128] On 28 July 2021, a meeting was held to discuss the allegations. Present were Mr Ryan of the respondent with Mr Byrne, the applicant and his support person Mr Summers.

[129] The applicant’s view was that he had done nothing wrong and that the meeting was “a waste of time”. When told that where he was having a professional disagreement, he was required to follow the correct internal channels, the applicant replied:

“I spoke to the parents in the hope that they would lobby Mr Marshall to move the test.” 37

[130] On 17 August 2021, Mr Byrne wrote to the applicant detailing the misconduct investigation findings which was that both allegations had been substantiated.

[131] Consequently, on 17 August 2020, a warning letter was issued to the applicant by Mr Marshall. This explained that the allegations were both substantiated and that his behaviour amounted to a breach of the code. The letter stated that statements in the code that had been breached were that:

“•  We conduct ourselves in accordance with the laws, agreements, policies, and standards relevant to our relationship within the school community.

•  You promote and preserve the trust and privilege inherent in our relationship with all members of the school community.

•  You maintain and build on the community’s trust and confidence in Catholic schools and the Church.”

[132] The letter recognised it was clear from his responses that in the applicant’s view his actions in emailing the parents was taken in the best interests of the students. But it noted that whilst that may have been his justification for his actions, he had been in breach of confidence potentially as applies to operational matters and his actions had had an adverse effect on the brand of the College.

[133] The warning letter stated he was expected in future to comply with all lawful and reasonable directions, to adhere to his duty of confidentiality and to comply with the code.

[134] Having received the warning letter, on 24 August 2021, the applicant wrote to Mr Marshall rejecting the warning and advising he was forwarding various documentation to appropriate “external bodies”.

2021 Review

[135] The evidence of Mr Marshall is that on 25 May 2021, he wrote to the applicant advising that as per the Contract Agreement of 16 September 2020, a performance review process would be conducted which was intended to be a means of professional development to confirm renewal of his contract as Head of Mathematics.

[136] His evidence was that by this stage, he had opted to step back from dealing with the applicant as he did not want to be seen to be bullying him. Consequently, the performance review was conducted by an external consultant Mr Barry Alfirevich.

[137] In August 2021, Mr Alfirevich released his review of the applicant’s performance. 38

[138] On 27 August 2021, Mr Marshall met with the applicant and Mr Billingsley to discuss Mr Alfirevich’s review. He told the applicant that regarding the next term for the Head of Mathematics role, he would reflect and consult including with CEWA.

[139] Mr Marshall’s evidence in chief was that on 30 August 2021, he attended an executive council meeting where the Head of Mathematics Contract Agreement was discussed. At the meeting, it was unanimously decided to not renew the applicant’s contract as Head of Mathematics.

[140] His evidence was that the file note shows a summary of the Academic Council’s concerns which he agreed with, but the file note contains a clear error and should read:

“All exec members stated that he should not be given another term as Head of Maths and a number commented that he should no longer be teaching at the school.”

[141] Consequently, he decided to not renew the applicant’s contract because of his and the executive staff’s concerns about the applicant’s leadership as Head of Mathematics including that in voicing strong opinions, the applicant creates the perception that he is abrupt and not always happy to respect the opinion of others and the applicant carried a zealous approach as a member of the Academic Council and in his relationship with the College’s leadership team, including the Deputy Principal.

[142] His evidence was these matters of concern affected the applicant’s capacity to:

“•  work collaboratively to focus on teachers providing students with learning environments that are engaging and challenging, so that students develop a strong desire to achieve and for ongoing learning;

•  oversee the development and implementation of outcomes in the programming, assessment, feedback and reporting of the learning area and work with the leadership team to develop learning programs and school wide pedagogy that assists all students achieve; [and]

•  provide evidence of dynamic, engaging relevant pedagogy.”

[143] His evidence was that other reasons also included the various incidents involving students and colleagues.

[144] Mr Marshall’s evidence is that consequently on 2 September 2021, he and Mr Billingsley met with the applicant and gave him a letter stating that he would not be offered the third term of his contract agreement as Head of Mathematics.

[145] Various communications between the applicant and Mr Marshall followed and on September 2021, the applicant copied him into an email to CEWA in which he said that Mr Marshall had been dishonest and disingenuous. Mr Marshall’s evidence is that he replied the same day stating that his decision was also related to how the applicant worked with Academic Council and executive members. 39

[146] Under cross-examination, Mr Marshall was challenged on how the review was sufficiently negative to warrant dismissal when there were 57 measures which were all satisfactory or better. His answer was that there were a series of statements in the review that concern the applicant’s capacity to work collaboratively which included him voicing strong opinions which create the perception he is abrupt and not respecting the opinions of others, and his zealous approach is negatively affecting his relationship with the leadership team including the Deputy Principal. Mr Marshall’s evidence was that the problematic statements in the review relate to aspects of the 2020 review, regarding the applicant’s relationship with the College leadership and his role as a head of a learning area in the school and needing to have a smooth, supportive and harmonious working relationship. 40

[147] Mr Marshall conceded that before the decision to demote the applicant was made, he was not given an opportunity to respond to the reasons for his demotion. The reason for this, he explained, was because of the extensive consultation process involved in the review. 41

[148] The evidence in chief of Ms White was that she was involved in giving feedback via an online portal for the applicant’s 2021 review.

[149] She was asked to comment on the applicant’s ability as a head of department.

[150] Her comments were that there were times in 2020 and 2021 when the applicant told her that he was distracted at work and she noticed he was because he was also not fulfilling deadlines, for example, deadlines for writing student reports. Based on her discussions with him, it appeared as though he was not focused on his job. Rather, he seemed to be focused on a crusade against the College and CEWA. From discussions with his staff on at least two occasions, they also seemed to be affected by the applicant’s distraction and work performance as they told her that they were not getting relevant support from him.

[151] She commented the applicant told her he had problems controlling his class as he was so tired. Students would argue to the point where the applicant would have to send them out the room. On at least two occasions, she had to go into his classes and address issues of discipline with his students. One time, she sat in his class and one of the students continued to argue. The applicant said the student was normally worse than that occasion. It was distressing for her to sit in on this instance. She also commented that the applicant told her that he had been distracted following up issues with CEWA, that he was not focused on his classes, that he found disciplining students was difficult for him and that he was tired when performing his work.

[152] In the review, she also commented that the applicant once caught a student cheating in a test, and she corrected him on the correct policy he had to follow (as he had not followed it). He got quite upset with her but when he realised she was correct, he said “of course you were correct” and again said that he was distracted and tired.

[153] Ms White also in the review made comment that at an executive meeting around about term 3 2021 involving all Assistant Deputy Principals, the Deputy Principal and the Principal, they discussed whether the applicant’s contract as Head of Mathematics would be renewed. The consensus at the meeting was that his contract should not be renewed for various factors including because the applicant was distracted from performing his role to the point where he argued almost anything was against policy. Other factors that were discussed were his work performance, other staff were not being supported by the applicant and his poor discipline in classes, which was below the standard expected of a head of department.

[154] Under cross-examination, her evidence was that she had not seen the formal report of the 2021 review. 42

[155] She said she would be surprised that the input from the 18 staff members to the review found he was doing a pretty good job and was satisfactory or above in all 57 items.

[156] Mr Billingsley’s evidence in chief regarding the 2021 review of the applicant was that after Mr Alfirevich’s review was completed, Mr Marshall held an executive meeting at which the applicant’s contract was discussed but this was not an agenda item.

[157] Mr Billingsley was at the meeting along with the Assistant Deputy Principals. There was a lot of tension around what was happening with the applicant. Somebody asked whether the College knew the outcome of the review. Mr Alfirevich was about to or had produced a report, and Mr Marshall wanted their opinions on the applicant’s performance.

[158] His evidence was the collective view was there was not the required level of trust in the applicant to perform as a Head of Department. The reasoning was that he always said that he was there to do God’s work and the concern was that the applicant would tell staff that the College’s policies or directives did not align with what God was guiding him to do or his interpretation of the College’s policies such as the code. The group consensus was that if the applicant decided he did not want to do certain things, he would not do them. There were general discussions as a leadership team that if there was not the required support for the applicant as a middle manager, that was a grave concern. The timing of the meeting was before Mr Marshall’s final decision whether to offer the applicant another contract.

[159] Mr Billingsley says he also had a meeting with Mr Marshall and expressed his grave concern was that there had been a number of allegations of serious misconduct concerning the applicant. He told Mr Marshall that when he questioned the applicant about the finer points of these serious allegations, his ‘go to’ response was “I don’t recall”. For that reason, he felt he could not trust the applicant to be honest with him about serious matters.

[160] Mr Billingsley also told Mr Marshall that he had warned the applicant about issues in the performance of his role as head of department, and in his conduct, but he just carried on doing the same thing. The applicant was not learning from those discussions with him and the discussions were not having the desired effect of improving the applicant’s performance. The applicant would say by way of explanation about his conduct that he was being guided by God and that God was the only one to whom the applicant had to answer. If Mr Billingsley gave him a direction he did not want to adhere to, the applicant would not comply, as he would say that he was being guided by God.

[161] Mr Billingsley says on 2 September 2021, Mr Marshall and he met with the applicant and gave him a letter stating that his contract would not be renewed in the position of Head of Mathematics. He had reviewed that letter before Mr Marshall gave it to the applicant.

[162] His evidence was that the next day, 3 September 2021, the applicant approached him for a discussion about the outcome of his review. He says he told the applicant that he did not have an issue with him raising his opinions but did have a concern if he was unable to trust him to do something and he refused to do it.

[163] Finally, his evidence in chief was that on 24 June 2022, the applicant is alleged to have physically held a student and this allegation is currently, as at 14 July 2022, being investigated.

[164] Under cross examination, his evidence was that he had not seen the entirety of the review report. 43

[165] He was asked, given the review was generally positive, why the executive team would hold the contrary view about the applicant. His answer was that he thought probably that the executive team would have come across more instances where they felt that the applicant would not follow instructions. 44 His evidence was that he thinks a key to the role of a head of learning area is that you follow instructions and directions.

[166] His evidence was the executive team’s opinion should have been taken into account because they are the people who are day-to-day running the school and if there is not faith that a middle leader in the College will follow directions, that is a significant concern. 45

[167] His evidence was that he had spoken to the applicant about issues in the performance of his role as head of department and those issues were around not following directions. These were significant directions. 46

[168] His evidence was that the Principal’s directions must be followed. He concedes that in one instance concerning grading, however, the Principal was not operating within the teachers’ registration board requirements. 47 His evidence was that at the time he thought the direction he was following was correct but in hindsight his professional judgement was wrong.48

[169] The applicant’s evidence in chief regarding the 2021 review was as follows. 49

[170] At the meeting on his performance review on 25 May 2021 with Mr Marshall, he asked Mr Marshall whether the review was a formative or summative appraisal under the Agreement. He was told that it was neither, to which he repeated his assertion that any other process would be invalid.

[171] The applicant says on 27 May 2021, he began communicating with Mr Alfirevich to move the appraisal process forward. He says Mr Alfirevich reiterated the review was not covered by the Agreement and was instead a new process which he termed a contract review. 50

[172] By email to Mr Alfirevich on 1 June 2021, the applicant stated he was not comfortable with the review process as it was not the process which was communicated to him, was not sufficiently well defined and was not a formal process under CEWA or IMCC policies. The applicant requested that the review be delayed a couple weeks so he could obtain legal opinions on various matters. 51

[173] By letter dated 4 June 2021, Mr Marshall detailed the eight steps for the review process and agreed to extend the timeline as he requested. 52

[174] The applicant’s evidence is that on 11 June 2021, he provided 15 staff names to Mr Alfirevich to be his nominated reviewers.

[175] His evidence was the details of his performance review were communicated to him on 12 August 2021. Out of 57 components, none were deemed below satisfactory. The summary items show his performance as Head of Mathematics was very good and not substandard in any respect. The outcome of the review should result in an objective and reasonable person concluding there was no justification for removing him from the position. 53

[176] The August 2021 Review provided to Mr Marshall is approximately 39 pages long. 54 Relevantly, the review contains a background explanation, an overview of the ratings and a list of commendations and a list of areas of concern, as below.

“1.0 BACKGROUND

The Mathematics Head of Learning Area (HOIA) Job Description for Irene McCormack Catholic College, Butler, was used as the basis of this Review. A Rating Scale instrument was constructed using each element of the Job Description. The resulting instrument comprised 57 data items.

As the Reviewee, Mr Hendricks, was asked to rate himself on each of the elements in the instrument and to add a comment for each item or include a General Comment at the conclusion as he wished.

In addition, staff members nominated as Data Sources were asked to rate the Reviewee’s performance on each of the items in this instrument. There was also an opportunity for Comments to be given either on each item or as a General Comment at the conclusion as they wish.

Excluding the Reviewee, in total 18 staff members submitted ratings and comments. The Data Sources comprised staff who were assigned duties within the College, staff who worked closely with the Mathematics HOLA and members of the College Leadership Team. This was a representative group of respondents that reflected the diverse nature of the School’s operation.

In the analysis of the ratings, Data Sources who consistently chose ratings either at the top or at the bottom of the range were excluded from the averaging process. This exclusion of the outliers is a recognised approach when determining the average rating.

For each item within the instrument, the percentage of Data Sources who responded to that particular item was also provided. This information assisted in the determination of the validity of the responses.

In summarizing the staff Comments on each item and for the General Comments, no Data Source was excluded.

In the averaging of ratings and in the summarization of comments every attempt has been made to respect the confidentiality of Data Sources. However, in some instances, the wording of the item makes it impossible to protect the identity of the Data Source. It is encouraged that a professional approach be taken to the constructive nature of these ratings and comments.

Appendix A provides a breakdown of the Average Data Source ratings, Self Rating and a summary of the Data Sources’ comments on each of the 57 items in the survey. The percentage of respondents (excluding the Self Rating) is also included for each item.

A summary of the comments provided as General Comments by the Data Sources for each part of the survey is included.”

“2.0 GENERAL OVERVIEW OF RATINGS

Ratings were awarded on 57 items of the Mathematics HOLA Job Description.

A general overview of the ratings distribution is provided in the table below.

In comparing Data Source Ratings and Self Ratings, a reportable difference would be if there was a variation of I rating or more between the Average of Data Source Ratings and the Self Rating.

A variation of less than 1 rating was seen on 46 items (81% of items).

A variation of 1 was seen on Items 32 and 51 (4% of items).

A variation of greater than 1 rating but less than 2 was seen on Items 4, 28, 32, 34, 42, 48, 49, 57 (14% of items).

There was no rating variation greater than 2 on any of the items.

There were 14 (25%) items where the average ratings awarded by the Data Sources were higher than the Self Ratings.

There were 11 (19%) items where the average Data Source ratings and the Self Ratings could be considered as being the SAME

There were 30 (53%) items where the average Data Source rating would be considered as BELOW the Self Rating.

Therefore, generally, the Self Ratings were higher than the average Data Source ratings. Whilst at one level, this is to be expected in instances where intimate knowledge of the role responsibilities rests with Mr Hendricks, it is, nevertheless, an outcome worthy of self-refection. This is particularly pertinent where there has been a high percentage of responses from Data Sources.

There were 2 Items (Items 30 and 50) for which Mr Hendricks rated himself as No Comment. The applicability of these items of the Job Description should be reviewed for future reference.

There was l Item (Item 50) where only 2 (11%) Data Sources provided a rating. There were 4 (22%) Data Sources who provided a rating on Item 40. Once again, the applicability of these items should be reviewed for their purpose going forward.”

“3.0 COMMENDATIONS

Firstly, it is important to point out that there was no component of the Job Description for which there was an Average Rating of Below Satisfactory. Nearly all components received Average Ratings in excess of Satisfactory.

It is acknowledged that Mr Hendricks takes a very professional approach to his duties. He strives to achieve the best possible outcomes for all concerned. He is very well-organised; efficient and purposeful in the manner in which he addresses his responsibilities.

The highest ratings given by Data Sources relate to the components of the Job Description that relate to the administrative components of the Job Description. Mr Hendricks sets high standards for himself and always strives to meet these expectations. His attention to detail is widely recognised.

Mr Hendricks’ actions clearly emanate from a strong Christian values base.

His positive contributions to school life extend beyond the stipulated responsibilities of his position. Involvement with extra-curricular activities demonstrate his commitment to the ethos of the school.

Mr Hendricks places students’ best interests first. He strives to ensure students enjoy success in their study of Mathematics. He encourages students to make the appropriate course choices that with benefit them into the future.

In his conversations with students, parents and colleagues, Mr Hendricks utilizes available performance data and adopts an analytical approach.

Mr Hendricks is a strong advocate for improvement and does not retreat from critical conversations.”

“4.0 GENERAL AREAS OF CONCERN

As indicated in Paragraph 3.1 above, there are no critical areas of concern indicated by a Below Satisfactory Average Rating on components of the Job Description.

However, there are comments that were offered by the Data Sources that are important considerations.

Firstly, in voicing his strong opinions, Mr Hendricks can create the perception that he is abrupt and not always happy to respect the opinion of others. This makes it particularly difficult to pursue a change agenda where it is important that Mr Hendricks has the support of others in order implement any effective improvements. Adopting a more collaborative, conciliatory approach may achieve more positive outcomes.

Secondly, it would appear that Mr Hendricks carries his zealous approach through to his role as a member of the College Academic Council and his relationship with the College Leadership Team. Whilst it is acknowledged that Mr Hendricks is always working in the best interests of members of the College community, adopting a more positive, respectful relationship with others may be a more productive approach.

Thirdly, from comments made by Mr Hendricks and others, managing student behaviour at the College is a challenging task. Mr Hendricks openly admits that he needs to develop greater skills in this area. This is a critical area for development since those with leadership responsibilities should be seen as outstanding practitioners. It is even more important since a new role for the HOLA is to assist and advise other staff who are experiencing student behaviour management difficulties. Professional development opportunities should be explored.

Fourthly, it is somewhat unusual for a Reviewee to score themselves higher than the Average Ratings of Data Sources on a significant number of components in the Job Description. This result is worthy of self-reflection and, perhaps, even re­ assessment of self-evaluation.

Finally, there are some elements of the role that are not very visible to many of the Data Sources. Consequently, there were some components of the Job Description that had a small number of responses. Whilst it is not entirely unusual to see this pattern of responses, it does mean that the results on these components need to be viewed with care.

If, as it appears, there are components of the current Job Description that are not completely understood or not relevant, it is an appropriate time to consider adjustments to the current Job Description.”

[177] The applicant says that on 2 September 2021, he had a meeting with Mr Marshall and received a letter notifying him that he would not be retained in his present position. 55

[178] The applicant says the Principal’s letter of 2 September 2021 is wilfully and maliciously inaccurate.

[179] He sent an email to Mr Marshall that day asking for clarification on several items in the letter and requesting that advertising of his position be delayed until he had an opportunity to use various dispute avenues available to him. 56

[180] The applicant says that on 6 September, he sent a letter to CEWA 57 to report a dispute and complaint against Mr Marshall. The letter disputes Mr Marshall’s decision to remove him as Head of Mathematics and relies on the positive review ratings. The letter concludes as follows,

“If a contract for the next two years is not offered to me as the Head of Maths by the end of Term 3 my response to the injustice of the entire process over the past two years will be vigorous and no longer limited as I have done previously.”

[181] The applicant says CEWA replied 4 weeks later and repeated the assertion that there is no formal policy or procedure for conducting Head of Department reviews.

[182] Under cross-examination, the applicant confirmed that one of the self-comments he made in the 2021 review was that he did not work for IMCC or CEWA or the Archdiocese, but he is a direct servant of God and that perspective drives his desire to lead the College back to the right path. 58

[183] The applicant explained his primary motivation for this application was the fact that a lot of people have been hurt by IMCC and the leadership at the school and when an institution or organisation or company advertises a certain product, he thinks that institution or organisation or company needs to be held to that standard that they advertise. 59

[184] The applicant’s evidence was that the College had not reached the standard they advertise and his entire work was to change that. 60

[185] The applicant accepts the code applied to his employment. He agrees that the code required him to act in a way that maintains trust and confidence in the College and this was an expectation of the Principal, Mr Marshall.

[186] He also understood the code required him to follow the lawful and reasonable directions given to him by the Principal or the Deputy Principal.

[187] He says he followed all lawful and reasonable instructions given to him and agreed that failing to do that would be a breach of the code. 61

Submissions

The applicant

[188] The applicant submits his dismissal was unfair because it violates the Contract Agreement Head of Mathematics dated 16 September 2020 and violates the processes through which dismissal can be justified under the Agreement.

[189] He submits that his contract agreements both stipulate that his continuation is subject to review.

[190] He submits that that review falls under the terms of the Agreement. Accordingly, he understood that should a positive formative review be received, he would remain in his position as Head of Mathematics after 31 December 2021. Additionally, he submits that if he were failing to perform his responsibilities adequately, a summative appraisal must occur under the terms of the Agreement.

[191] The applicant’s submission is that no other possible reviews or appraisals are defined where he could be dismissed without due process. He says this was confirmed by CEWA in the letter dated 5 October 2021 where it is stated,

“There is no formal CEWA policy or procedure on the conduct of Head of Department Reviews.” 62

[192] The applicant submits that the respondent refuses to acknowledge that under the Agreement, the summative appraisal is the correct review process for potential termination of all teachers including heads of learning areas.

[193] The applicant submits that despite not acknowledging the appropriate process for providing him grounds for the employer’s concerns, he agrees the performance review was thorough, fair, and positive with relation to his performance.

[194] The applicant submits the published performance review 63 is the most objective document available in this case and should be afforded great weight when considering whether his dismissal is fair or unfair

[195] The applicant submits that the letter of 2 September 2021 advising he would no longer be the Head of Mathematics specified two concerns that affect his leadership: voicing strong opinions and a zealous approach. The letter said these concerns affect his capacity to work collaboratively, oversee the development and implementation of outcomes and provide evidence of dynamic, engaging relevant pedagogy.

[196] He submits that these do not agree with item 28 in the performance review on collaboration where he had a rating of 3.6 and several positive comments, nor do any of the other ratings in the performance review support these concerns. As far as he knows, he is the only staff member to have won a national award for teaching after being nominated by his students.

[197] In response to the issues raised in the respondent’s evidence relating to interactions he had with students and teachers, he relies on the general challenges with teaching and a senior school. He estimates he would have approximately 18,000 interactions per year with students, teachers, staff or parents. Many of those interactions, he submits, involved challenging students who required discipline.

[198] He says the teacher who has not had conflicts with students is a teacher that does not care enough to push students to do better. Conflicts happen and sometimes, he submits, are necessary to provide a way forward. All the instances cited by the respondent involving students were with very headstrong, immature people. The applicant suggests these incidents, though seemingly negative, actually were positives as everyone grew from the experience.

[199] The applicant submits all students returned to and finished the year in his classes and all except one apologised to him and where appropriate, the applicant apologised to them.

[200] He submits the performance review is the most important piece of evidence as it provides a more representative and objective portrayal of how he is perceived within the College. As the review’s general comment states, he is a valued staff member.

[201] The applicant submits that the discrepancy between the perspectives of himself and the respondent is likely due to the old axiom ‘power corrupts and absolute power corrupts absolutely’.

The respondent

[202] For the respondent, it is submitted that having regard to the criteria to be considered pursuant to s.387, the demotion of the applicant was not harsh, oppressive or unreasonable.

[203] The reasons for demotion were valid reasons for the purposes of s.387(a) and Mr Marshall’s reasoning was eminently sound, defensible and well-founded. Mr Marshall’s process of reasoning drew from the findings of a thorough, independent review of the applicant’s performance and his consultation with those who worked closely with the applicant including other executives of the College.

[204] The applicant was notified of the reasons for his demotion by the letter dated 2 September 2021.

[205] To the extent that the demotion related to the applicant’s performance, prior to his demotion, he had been given ample opportunity to gain insight into deficiencies in his performance of the kind referred to in the 2020 review, and to improve his performance in relation to the same matters that ultimately led to his demotion. The thorough review conducted in 2020 had given the applicant an opportunity to demonstrate insight into the deficiencies in his performance and conduct that lead to adverse outcomes and adverse assessments, and he had an ample opportunity to demonstrate that he was willing and able to meet the requirements of the role.

[206] To the extent that the demotion related to the applicant’s capacity and conduct, the process adopted in respect of the 2021 review provided him an ample opportunity to be heard prior to Mr Marshall’s decision being made. The applicant was able to provide a self-assessment for the purposes of the 2021 performance review, he was provided with the 2021 review report and he met with Mr Billingsley and Mr Marshall on 27 August 2021 in order to discuss the outcome of the 2021 review. At that meeting, the applicant was advised that the question as to whether his contract as Head of Mathematics was to be renewed would be considered by Mr Marshall in light of the findings in the 2021 review and consultation with others.

[207] The applicant was not at any time denied any request for a support person to be present in relation to any meeting or discussion with him.

[208] The findings set out in the letter of demotion reflected the poor performance and inappropriate behaviour that had been documented in both the 2020 performance review and the 2021 review. The incident involving the students of African descent and the incident involving the NAPLAN re-scheduling are examples of aspects of that poor performance and misconduct occurring in 2020 and 2021 respectively. There had been no demonstration of insight on the part of the applicant in respect of deficiencies in his teaching and conduct, such that there was no basis upon which Mr Marshall ought to have expected that there would be an improvement in the applicant’s performance and conduct.

[209] The role of Head of Mathematics was particularly important; a failure of leadership within that learning area had the capacity to adversely affect student outcomes. Given the importance of the role, the decision not to renew the applicant’s appointment as head of a learning area, but to retain the applicant as a teacher within the College, was eminently fair and reasonable.

[210] Consequently, the respondent submits this application should be dismissed.

The legislation

[211] Section 387 of the Act prescribes criteria the Commission must take into account when determining whether the dismissal of Mr Hendricks was harsh, unjust or unreasonable. This is set out below.

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

Consideration

[212] I will now consider the matters specified in s.387.

[213] It is well-established that in order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 64 and should not be “capricious, fanciful, spiteful or prejudiced.”65

[214] It is also important to appreciate that the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 66

Valid reason

[215] The background to the respondent deciding to demote the applicant was that as provided for in the Contract Agreement of September 2020, a further term for the applicant as Head of Mathematics was subject to a review.

[216] An independent reviewer was engaged and obtained data from 18 staff members regarding 57 questions each concerning an element of the applicant’s job description. The staff gave a numerical rating between 1 and 5, or no comment, for each item. The applicant was also asked to rate himself on these elements. The staff also had the opportunity to submit comments.

[217] The applicant does not take issue with the integrity of the review. In fact, the applicant argues the review was positive because it shows there was no component of the job description for which he received an average rating below satisfactory and for nearly all components he received average ratings in excess of satisfactory, therefore there was no reason for him to be demoted. He submits the review is the most objective document. 67

[218] The review’s outcomes were not, however, only the data on his performance ratings but also included comments made by staff either on each item or at the conclusion of the review questionnaire.

[219] The review report captures a summary of these comments and groups them as either commendations, which are favourable to the applicant, or general areas of concern, which are unfavourable to him.

[220] Simply put, the applicant gives no weight to the comments recorded in the review which were unfavourable to him, that is the general areas of concern list, whereas the respondent viewed these comments as seriously problematic.

[221] An executive council meeting on 30 August 2022 discussed the Head of Mathematics Contract Agreement and the evidence is they were unanimously of the view that the applicant’s contract should not be renewed for a further term. Comments recorded at the time include that the applicant was not a team player, he seemed to undermine people, he could not be trusted and had issues in his teaching role. 68

[222] Clearly, the relationship between the applicant and the executive was fatally damaged.

[223] Mr Marshall’s letter of 2 September 2021 to the applicant refers to the review and notes that the review identified areas of commendation such as his commitment to his faith and the St Andrews Parish and his involvement with the extracurricular program.

[224] The letter then notes the review identified concerns that affect his leadership as Head of Mathematics including voicing strong opinions which create the perception that he is abrupt and not always happy to respect the opinion of others and that he carries a zealous approach as a member of the Academic Council and in his relationship with the College’s leadership team including the Deputy Principal.

[225] Mr Marshall’s letter then explains that these concerns affect the applicant’s capacity to, in summary, work collaboratively, oversee the development and implementation of outcomes and work with the leadership team to assist all students achieve and to provide evidence of dynamic, engaging relevant pedagogy.

[226] Unsurprisingly, the executive council’s criticisms of the applicant and the unfavourable comments captured in the review are quite similar.

[227] The concerns Mr Marshall set out in his letter of 2 September 2021 and how those concerns negatively impacted the applicant’s ability to discharge his obligations as the Head of Mathematics were sourced from comments of staff who contributed to the review and were concerns echoed by the College’s executive council. These concerns were not capricious or fanciful. These concerns were the reason for the applicant’s dismissal and they were sound and defensible.

[228] The Commission is satisfied that the reasons for the applicant’s dismissal were valid reasons to do with his conduct.

[229] The applicant’s decision to disobey Mr Billingsley’s self-evidently lawful and reasonable direction not to email parents regarding the rescheduled NAPLAN test is one example of behaviour of the type Mr Marshall referred to in his letter to the applicant. This action improperly undermined the school’s leadership.

[230] Regardless of the applicant’s strength of opinion, his action was entirely ill considered given sending the email to parents at 9:19 AM on the day of the test could not in all likelihood have altered when the test was conducted. He had hoped parents would call to get the test postponed. This did not happen. All that was achieved was publicising his implied criticism of Mr Marshall.

[231] Deliberately disobeying Mr Billingsley’s direction as the applicant did was itself also a valid reason for the applicant’s dismissal to do with his conduct.

Notified of the reason

[232] The applicant was notified of the reasons for his dismissal both orally by Mr Marshall and in the letter given to him dated 2 September 2021. The notification, however, was after the decision to dismiss him had been made.

Opportunity to respond

[233] The applicant did not have an opportunity to respond to the reasons for which he was dismissed before the decision to dismiss him was made.

Refusal to allow a support person

[234] There was no refusal by the respondent to allow the applicant to have a support person present at any discussions relating to his dismissal.

Unsatisfactory performance warnings

[235] The applicant had not received any warnings about his unsatisfactory performance before his dismissal.

Size of the employer’s enterprise and absence of human resource management specialists or expertise

[236] CEWA is a large employer and does have in-house human resource management expertise. To the extent there are deficiencies in the procedure followed in effecting the dismissal, this is because the decision to not provide the applicant with a further term as the Head of Mathematics was a demotion and this decision was not recognised by the respondent to be dismissal within the meaning of s.386 of the Act until after it had taken effect.

Other relevant matters

[237] The applicant was first employed in 2017. He held the position of Head of Mathematics from September 2018.

[238] It is relevant that the 2020 review had identified areas for future focus some of which are related to some of the reasons for dismissal.

[239] In 2020, the applicant had been advised amongst other things that he needed to realise his viewpoint and extreme opinions can make conversations become uncomfortable in the office, he needed to gain educational leadership skills and experience including the ability to listen, challenge and act with justice, integrity and care, and he needed to be more open and flexible to being mentored, undertaking observation and listening to feedback.

[240] Some of the unfavourable comments in the 2021 review demonstrate the applicant did not improve on those concerns that were raised with him a year earlier.

[241] Having been formally advised that he was demoted, the applicant thereafter queried this in an email to Mr Marshall the next day and requested his decision to advertise the Head of Mathematics role be delayed until he could pursue avenues to challenge the demotion.

[242] The evidence is he did then challenge within CEWA the dismissal decision. Ultimately, the respondent’s decision was not changed but in practice it only took effect on 31 December 2021 after he had been advised of his demotion on 2 September 2021.

[243] Considering these events and noting that throughout this the applicant remained employed, he did in fact have an opportunity to respond to the reasons for which he was dismissed and he did so in circumstances where if the respondent had been swayed by his arguments, the decision to demote him could have been reversed before it took effect.

[244] Consequently, because of the particular circumstances of this case, there were limited negative consequences to the applicant from what would usually be viewed as serious procedural deficiencies.

[245] Overall, the Commission accepts that the applicant, throughout his term as Head of Mathematics, was not acting with malice. The impression is left, however, that the applicant was conflicted by the multiple duties he had, as a Christian to God, as a teacher to the students and parents and as an employee to his employer’s representatives, the Principal and Deputy Principal.

[246] He has, for his own reasons, chosen at times to act with little regard for his duty to his employer and consequently has been dismissed.

[247] Considering all of the circumstances of this case, I am not satisfied that the dismissal of the applicant was either harsh, unjust or unreasonable.

[248] The applicant was not unfairly dismissed by CEWA.

[249] An order to that effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

<PR746608>

Appearances:

Mr J Hendricks, Applicant.
Mr C Beetham of counsel for the Respondent.

Hearing details:

2022.
Perth:
3 August.

 1   2016 WAIRC 00812.

 2   Attachment RM 8 to the statement of Mr Marshall.

 3   Attachment AB 8 to the statement of Mr Billingsley.

 4   Attachments RM 10 and 11 to the statement of Mr Marshall.

 5   Attachment RM 14 to the statement of Mr Marshall.

 6   Attachment AB 9 to the statement of Mr Billingsley.

 7   Transcript PN 605, 610 – 616.

 8   Attachment RM 16 to the statement of Mr Marshall.

 9   Attachments DW 4 and 5 to the statement of Ms White.

 10   attachment DW 6 to the statement of Ms White.

 11   Transcript PN 396 – 404.

 12   Transcript PN 410.

 13   Transcript PN 411 – 417.

 14   Transcript PN 418 – 420.

 15   Transcript PN 421

 16   Transcript PN 425.

 17   Transcript PN 428.

 18   Transcript PN 645.

 19   Transcript PN 624 – 626.

 20   Transcript PN 629.

 21   Transcript PN 908 – 913.

 22   Transcript PN 639 – 641.

 23   Transcript PN 649, 651.

 24   Transcript PN 791.

 25   Transcript PN 797.

 26   Transcript PN 807 – 812.

 27   Transcript PN 116.

 28   Form F2 page 82.

 29   Form F2 page 84

 30   Transcript PN 152 – 156.

 31   Transcript PN 174 – 175.

 32   Transcript PN 164.

 33   Transcript PN 175, 180.

 34   Transcript PN 94 – 133.

 35   Transcript PN 152 – 156.

 36   Transcript PN 174 – 175.

 37   Attachment RM 22 to the statement of Mr Marshall, record of discussion page 3; Transcript PN 1338.

 38   Attachment RM29 to the statement of Mr Marshall.

 39   Attachment RM37 to the statement of Mr Marshall.

 40   Transcript PN 1064 – 1065, 1095 – 1098

 41   Transcript PN 1133, 1155.

 42   Transcript PN 287.

 43   Transcript PN 784.

 44   Transcript PN 791.

 45   Transcript PN 797.

 46   Transcript PN 804 – 812.

 47   Transcript PN 845 – 846.

 48   Transcript PN 872 – 875.

 49   Submissions and statements of the applicant dated 17 June 2022 and 22 July 2022.

 50   Attachment JH 4 to the applicant’s statement.

 51   Attachment JH 4 to the applicant’s statement.

 52   Attachment JH 5 to the applicant’s statement.

 53   Attachment JH 7 to the applicant’s statement.

 54   Attachment RM 29 to the statement of Mr Marshall.

 55   Attachment JH 8 to the applicant statement.

 56   Attachment JH 9 to the applicant statements.

 57   Attachment JH 12 to the applicant statements.

 58   Transcript PN 5 – 6; Attachment JH 7 to the applicant’s statement item 53, self comment.

 59   Transcript PN 53.

 60   Transcript PN 55.

 61   Transcript PN 64 – 71.

 62   Attachment J H3 to the applicant’s statement.

 63   Attachment JH 7 to the applicant’s statement.

 64   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

 65   Ibid.

 66   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

 67   Transcript PN 1342.

 68   Attachment RM 31 to the statement of Mr Marshall.